Case 1:13-cv-00360-RJJ ECF No. 124-1 filed 01/24/16 Page 1 of 15 PageID.1330

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN

MALIBU MEDIA, LLC

Civil Action Case No. 1:13-cv-00360-RJJ
Hon. Robert J. Jonker

Plaintiff,
v.
Jesse Raleigh,
Defendant.
______________________________________________________________________________
Nicoletti & Associates, PLLC
By: Paul Nicoletti (P44419)
Attorney for Plaintiff
33717 Woodward Ave., Suite 433
Birmingham, MI 48009
(248) 203-7800

Blanco Wilczynski, PLLC
By: Derek S. Wilczynski (P57079
Attorneys for Defendant
2095 E. Big Beaver Rd., Suite 400
Troy, MI 48083
(248) 519-9000

Lipscomb, Eisenberg & Baker, PL
Lincoln G. Herwyer, PC
By: Keith Lipscomb (pro hac vice)
By: Lincoln G. Herweyer (P55742)
Jessica Fernandez (pro hac vice)
Attorney for Defendant
Attorneys for Plaintiff
35054 Twenty-Three Mile Rd., Suite 115
2 S. Biscsayne Blvd., Suite 3800
New Baltimore, MI 48047
Miami, FL 33131
(586) 716-1562
(786) 431-2228
_____________________________________________________________________________
****ORAL ARGUMENT REQUESTED****

[DRAFT] BRIEF IN SUPPORT OF
DEFENDANT'S DAUBERT MOTION AND MOTION IN LIMINE TO EXCLUDE, OR IN
THE ALTERNATIVE LIMIT, THE EXPERT TESTIMONY OF PATRICK PAIGE

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INTRODUCTION
Pending before this Court is an action for direct copyright infringement by Plaintiff
Malibu Media, LLC against Defendant Jesse Raleigh. Malibu Media is a prolific "for profit"
copyright litigator and producer of pornographic videos that makes money through the seeding
of the internet with its copyrighted pornography,1 and by then suing or threatening to sue those
individuals who "take the bait" (so to speak) and download Malibu's pornography. Malibu also
sues people, like your instant Defendant, who have not downloaded Malibu's pornography.
Because Malibu's business model relies on intimidation, it cannot afford to ever admit
that it has sued an innocent party, because that would reveal the weakness in its general ability to
prove infringement cases. Instead, when discovery fails to support the allegations contained in
its Complaint, Malibu alleges that the wrongfully sued person must have hidden the evidence.
Malibu claims that, working in league with a German Company called Excipio, it can
determine the IP address through which a user of Bittorrent software has either downloaded or
uploaded digitized portions of its copyrighted works. As it regards this particular case, Malibu
claims that, from February 11, 2013, through February 17, 2013, some 49 data packets
associated with six of its copyrighted pornographic videos were transferred by a Bittorrent user
through IP address 24.247.226.165. For purposes of this motion (only), it is not disputed that, at
the relevant time, that IP address was associated with internet service provided to an apartment in
Petoskey, Michigan, and that the account was in Defendant's name. The fact that Defendant is
the one who paid for the internet service was sufficient, in Malibu's view, to sue Defendant and
claim that he was the infringer.

1

If Malibu, itself, is not the initial seeder, it is still the case that such seeding is necessary to
Malibu's litigation model. Its "films" are being made available on the internet for downloading
as torrent files within hours of being completed, and but for the serendipity of this mysteriously
timely and cooperative uploader, its shakedown operation could not flourish.
1

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Defendant's theory of the case is decidedly less speculative.

First, Defendant has

personal knowledge that he did not download or upload Malibu's works. Second, Defendant was
in Grand Rapids for the bulk of the period from February 11, 2013 through February 17, 2013,
where his then job with Agent X, LLC was located.2 At the time, he had yet to complete the
transition of moving his family to Grand Rapids. Third, Defendant's router in Petoskey was not
password protected, so (assuming that a Bittorrent user downloaded Malibu's works through the
expediency of Defendant's internet service) it could have been anyone in any of the four
apartments in the house in which his family lived, or even someone located in the 5-unit
apartment house next door.3 Fourth, of course, none of Malibu's works (or any of the other items
supposedly downloaded by the infringer according to Malibu's "expanded surveillance") were
found on any of Defendant's computer devices. Fifth, although Defendant works in the computer
technology field and uses Bittorrent for legitimate purposes, Malibu's own evidence establishes
that "the infringer" used a Bittorrent software version identified as qBittorent (or qBT), whereas
the torrent client and torrent files identified on Defendant's devices by Malibu's supposed expert
(Paige) were all associated with a software version identified as uTorrent.
On October 5, 2015, Paige authored a report (see Doc 108-1), hereinafter "the Paige
Report"), which was provided to Defendant's counsel on October 6, 2015 pursuant to Fed. R.
Civ. P. 26(a)(2)(B) and this Court's October 6, 2015 order (Doc. 104).
2

In its Reply brief recently filed in support of its specious motion for sanctions, Malibu argued
that it had never been provided with evidence of Defendant's presence in Grand Rapids during
the relevant time. However, Malibu was given complete access to Defendant's Dropbox account,
and its "expert" scrutinized Defendant's photo images that were uploaded to that account. The
metadata associated with numerous photos thereon demonstrates that Defendant's smart phone
was in Grand Rapids during the relevant period and it was taking photographs of Grand Rapids
images.
3

Defendant even has particular suspicions about the individual who occupied the apartment
directly above his family's, but unlike Malibu Media, he is unwilling to affirmatively make
accusations based on no more than speculation.
2

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Defendant now moves to exclude or limit the testimony of Paige based on the contents of
the Paige Report, which reveal that the premises and conclusions therein are fatally flawed.
STATEMENT OF FACTS
Family, Residency and Work History. Defendant is a software engineer, programmer,
and information systems specialist. From June 2006 until January of 2013, he worked for
Silversmith Inc., in Gaylord, Michigan. (Aff., p 2, Doc 80-11, Pg. ID 711; J. Raleigh Dep., pp 611, Doc 122-2, Pg. ID 1217-1218.)

From 2011 until early January of 2013, Defendant

commuted to that job (35 miles each way) from an apartment in a four-unit house at 218
Michigan Ave., Petoskey, Michigan, where he lived with his wife, Heather, and their two sons, J.
and C. In February 2013, during the alleged period of infringement, Defendant's son J. was three
years old, and his son C. was one year old. (Id.; H. Raleigh Dep, p 8, Pg. ID 1295.)
In December 2012, Defendant accepted a job offer from Agent X, LLC., a marketing firm
located in Grand Rapids, Michigan, 178 miles from his apartment in Petoskey. Defendant began
working as the Lead Technologist for Agent X, LLC in early January 2013 and initially (in order
to work in Grand Rapids) Defendant stayed with a friend named Ryan Jackson, but he also spent
about three weeks staying with his wife's relatives. (Aff., p 2, Doc.80-11, pg. ID 711; J. Raleigh
Dep J. 6-9, Doc 122-2, Pg. ID 1217-1218.).
In March 2013, Defendant moved his family to a house located at 343 Norwood Avenue
SE in Grand Rapids (Id.; Inter. Ans., p 1, Doc 122-2, Pg. ID 1260). On September 11, 2013, the
owner of Agent X, LLC (Brian Steketee) registered a new limited liability company with the
State of Michigan, called Modustri LLC, in order to capitalize on a new technology invented by
Defendant.

Although Agent X, LLC officially went out of business in May 2014, Defendant

3

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continued working as the Lead Technologist for Modustri LLC, the offices of which are located
at 38 Commerce Ave, Suite 102, Grand Rapids.
In February 2015, Defendant took a job as a Senior Developer with PhishMe Inc. The
next month, he and his family moved to their current address on Fruit Street in Grand Rapids.
The Alleged Infringement, Discovery, and the Paige Report. Malibu's Complaint
alleges six acts of infringement occurring through Defendants IP address in Petoskey as follows:
two incidents occurring just after midnight on February 11, 2013; three incidents on February 15,
2013 (one around noon, and two just after 8:00 pm); and one on February 17, 2013 at around
5:00 pm. (Complaint Ex A, Doc 1-1, Pg. ID 8.) The affidavit of Michael Patzer reveals that
Malibu purports to have actually tracked a total 49 data packets transferred from or to
Defendant's IP address, all occurring roughly at the times indicated above, regarding six of
Malibu's works. (Exhibit _, Patzer Declaration, Ex B.) The "client version" associated with each
of those transfers was qBittorrent 3.0.6.4 (Id.)
In his Answers to Interrogatories, Defendant explained that he was in Grand Rapids at the
time of the first three incidents of infringement,5 and was driving from Grand Rapids to Petoskey
at the time of the fourth and fifth incidents. He spent the 16th at his parents' house in Alanson,
and returned to Grand Rapids on the 17th. (Doc-122-2, p 9, Pg. ID 1267.)
At no small inconvenience and burden on Defendant's privacy, Malibu's computer
forensics "expert" (Paige) has been permitted to extensively examine Defendants two MacBook

4

"qBittorrent" is a BitTorrent client (i.e., program) written using the Qt4 Framework for its user
interface. https://github.com/qbittorrent/qBittorrent/wiki/Frequently-Asked-Questions.
The
3.0.6 version of qBittorent was first released for use on October 7, 2012.
http://www.qbittorrent.org/news.php. (Both accessed on January 11, 2016.)
5

Malibu has in its possession numerous photographs, the metadata of which evinces Defendant's
presence at 38 Commerce Ave, Suite 102, Grand Rapids, Michigan, at the times in question.
4

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Computers, two iPads, an 80 GB Toshiba external hard drive (the contents of which were created
specifically to respond to discovery in this case);6 a 2TB Western Digital external hard drive that
Defendant has been using as a"Time Machine" backup for his computer files.7
On October 5, 2015, Paige authored his report (Doc 108-1). The three most notable
aspects of the report are all omissions. First, the Paige Report leaves the reader to assume from
its absence of mention that he found no traces of Malibu's works on any of Defendant's devices.
This is consistent with Paige's past practice.8 Second, Paige likewise omits mentioning that he
found none of the torrent files associated with Malibu's "expanded surveillance" of Defendant's
6

In Plaintiff's initial Requests for Production (the objections to which were later resolved with a
moderating order), Malibu asked Defendant to make a clone of his hard drive(s) and produce it.
The Toshiba was such a clone, produced in accordance with that request. When it and the
Western Digital Drive were later turned over to Plaintiff's counsel's expert, they were retained for
some 45 days, and then returned without being examined because Plaintiff's counsel insisted that
his expert be permitted to make his own copies of Defendant's hard drives. After doing so, and
finding evidence of the existence of the Toshiba and Western Digital hard drives, Plaintiff's
counsel then demanded to be again provided with the two hard drives. And if that is not enough
evidence of a farce, Plaintiff's counsel later demanded to examine Defendant's Playstation after
seeing an excerpt from a text exchange between two people (who Defendant does not even
know) that was highlighted in Paige's 2-13-15 findings for an unrelated (but still specious) point
that Paige was trying to make. Plaintiff's counsel, however, got confused, and thought
Defendant was a participant in the text exchange (which he was not) that mentions playing
downloaded torrent files on a Playstation2.
Consequently, laboring under his own
misapprehension and tendency to jump to the wrong conclusions, Plaintiff's counsel continued
the farce with a fruitless forensic examination of an old gaming console.
7

Time Machine is a program that backs up all of your files to an external hard drive so that you
can restore them later or see how they looked in the past. The program automatically makes
hourly backups for the past 24 hours, daily backups for the past month, and weekly backups for
all previous months. The oldest backups are deleted when your backup drive is full.
https://support.apple.com/en-us/HT201250 (accessed 1-11-16). Hence, a Time Machine back up
will always have something like 24 backups for each of the preceding 24 hours (23 of which are
released to be overwritten the next day), 30 daily backups for the prior month (26 of which are
released to be overwritten the next month), and as many weekly backups as the drive can hold.
8

In a similar case where Malibu had sued the wrong party (who was represented by the
undersigneds), Paige actually had to be ordered by Judge Roberts of the Eastern District of
Michigan to supplement his affidavit to specifically state that no evidence of infringing files or
of their deletion had been found on the defendant's hard drive. (See Exhibit _, 9-17-14 order
USDC ED Mich. 13-cv-12217.)
5

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IP address. Third, being perhaps the most glaring omission of all, while the Paige Report
expounds on the discovery of the uTorrent client (i.e., a program) on Defendant's computer (a
finding that Defendant's discovery answers said would be present) and a smattering of stray
torrent files (which one would expect since Defendant uses uTorrent), the Paige Report makes no
mention of the fact that no trace of the qBittorent client (i.e., the software that Malibu's expert
Michael Patzer says was used for each alleged incident of infringement) was found anywhere on
any of Defendant's computers or storage devices.

In the Argument section that follows,

Defendant will address the opinions that actually were set forth in the Paige Report.
ARGUMENT
I.

THIS COURT SHOULD EXCLUDE, OR OTHERWISE LIMIT, THE
TESTIMONY OF PATRICK PAIGE BECAUSE THE OPINIONS CONTAINED
IN HIS OCTOBER 5, 2015 REPORT ARE NOT BASED ON SUFFICIENT
FACTS, ARE NOT THE PRODUCT OF RELIABLE PRINCIPLES AND
METHODS THAT HAVE BEEN RELIABLY APPLIED, AND ARE OTHERWISE
NOT ADMISSIBLE.
In Daubert v Merell Dow Pharm.s, Inc., 509 U.S. 579, 13 S. Ct. 2786, 125 L. Ed. 2d 469

(1993), the Supreme Court held that the Federal Rules of Evidence, in particular Fed. R. Evid.
702 and 104(a), govern the admission of expert testimony and require that the trial judge "ensure
that any and all scientific testimony or evidence admitted is not only relevant, but reliable."
Daubert, 509 U.S. at 589. The Supreme Court later clarified that this gatekeeping obligation
applies to all expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 143 L. Ed. 2d 238,
119 S. Ct. 1167 (1999). The "knowledge" requirement of Rule 702 requires "more than
subjective belief or unsupported speculation," Daubert, 509 U.S. at 590; ,Tamraz v Lincoln Elec.
Co., 620 F3d 665, 670 (CA 6, 2010). "Red flags" that demonstrate a lack of reliability include:
(1) improper extrapolation, (2) reliance on anecdotal evidence, (3) reliance on temporal
proximity, (4) insufficient information about the case, (5) failure to consider other possible
6

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causes, (6) lack of testing, and (7) subjectivity. Best v Lowe's Home Ctrs, Inc, 563 F3d 171, 177
(6th Cir. 2009); Downs v. Perstorp Comp., Inc., 126 F. Supp. 2d 1090 (E.D. Tenn. 1999).
The party proffering the expert testimony bears the burden of showing its admissibility.
Daubert, 509 U.S. at 592 n. 10. It is left to the discretion of the district court as to whether an
evidentiary hearing is necessary in order to resolve a Daubert challenge. See Nelson v Tenn Gas
Pipeline Co, 243 F3d 244, 248-249 (6th Cir. 2001).
Moreover, given that Daubert not only requires that expert testimony be reliable but also
relevant, FRE 404(b), 104(b), 401 and 403 are particularly applicable to the Paige Report. Under
FRE 404(b) "Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith." Even if such other "bad acts' were
relevant (for instance, on a theory other than propensity), under FRE 104(b), their relevance
would be conditioned on establishing that they did, in fact occur.

Finally, any marginal

relevance would have to be weighed against unfair prejudice. FRE 403.
A.

Paige's Opinions that "Defendant Failed to Produce Relevant Computer Devices
and Committed Perjury" Should Be Excluded.
Paragraph 17 of the Paige Report presents a photograph obtained from Defendant's

dropbox. Cropped from the photograph by Paige are the images of Defendant's son J., and
another boy not related to Defendant, N.H.

The metadata associated with the photograph

establishes that it was taken on June 29, 2013 at Defendant's house at 343 Norwood, in Grand
Rapids. Another picture taken contemporaneously also depicts a young girl, A.P., who is also
playing on an iPad. Present at the home at that time was a man named Nick Peariso, who is the
father of A.P. and is dating the mother of N.H., and who owned one of the MacBook computers
seen on the table and two of the iPads. (Doc 115-2, Pg. ID 1142-1143; Affidavit, Doc 1201-1,
Pg. ID 1198-1199.)
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Paige was aware of the ages of Defendant's children, and should reasonably have realized
that the picture he was referencing did not depict C., who was only two years old at the time. It
is obvious that he was scrutinizing Defendant's photo library, so he also must have seen the
picture with A.P. in it. Paige's assertion that the photo he references "does not show any guests"
(Paige Report, ¶ 22) is demonstrably false, and his presumption that a picture of a guest's laptop
taken in Grand Rapids in June 2013 is evidence that Defendant withheld a computer device that
was used in Petoskey in February 2013 is not the product of a reliable method reliably applied.
Instead, it has the hallmarks of all of the "red flags" identified by the Sixth Circuit. See Best,
supra, at 177.
Similarly, at ¶¶ 11-15 of the Paige Report, Paige tries to associate a random photo taken
by Defendant on November 8, 2013 with an unrelated tweet sent on December 27, 2014, then he
applies some absolutely false information to reach a wholly fabricated conclusion. That is, the
metadata associated with the photo in Paige Report ¶ 12 clearly establishes that it was taken at
the Modustri offices located at 38 Commerce Avenue in Grand Rapids on November 8, 2013.
The 1-terrabyte server backup associated with the icon in the photo belonged to Modustri. The
tweet issued on December 27, 2014 (over a year later) had nothing to do with the picture, and
was referencing files that were turned over to Paige. (Doc 115-2, Pg. ID 1141-1142.) Moreover,
Paige's assertions in ¶14 of his Report is simply false-- the testimony and evidence is very clear
(see supra) that Defendant stopped working at Silversmith, Inc. in early January 2013. Hence,
Paige's erroneous presumption that the November 8, 2013 picture was taken while Defendant
worked at Silversmith is just that -- erroneous. Again, all of the "red flags" apply here. Best,
supra at 177; Downs, supra at 1120-1122.

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To like effect, ¶¶ 24-26 of the Paige Report evince yet another speculation-driven
conclusion that is demonstrably false. That is to say, during Paige's scrutiny of the photos in
Defendant's Dropbox, he found the photo set forth in ¶ 25 of his Report. At the right side of the
photo is an AOC monitor that Defendant still owns and Malibu is free to examine. (See Doc 1152, Pg. ID 1143; Doc 120-1, ¶ 13, Pg. ID 1200.) Paige, however, apparently envisioned that the
monitor could have been an AOC all-in-one computer.

From the notion that this was a

possibility, he then concluded that it was an all-in-one computer.

From that erroneous

conclusion, he further concluded that Defendant was hiding computer devices. Clearly, this is
the kind of speculation that the Supreme Court decided should not be erroneously clothed with
the imprimatur of reliable by coming from an "expert." See, Daubert, 509 U.S. at 590.
Similarly, and with the additional aspect that it calls Paige's computer "expertise" even
further into question, Paige suggests that the presence of Google Drive URLs on Defendant's
machine somehow establishes that Defendant had a Google Drive account that he failed to make
available to Malibu. (Paige Report, ¶¶ 28-29.) But such URLs are produced when anyone clicks
a link to someone else's shared file. (Doc 120-1, ¶14, Pg. ID 1200.) Apparently, if Defendant
had ever directly downloaded one of the filings in this case, Paige would be accusing him of not
disclosing all of the files stored on the computers of the United State District Court for the
Western District of Michigan.
B.

Paige's Opinion that "The Creation Date of the Volume on Defendant's Western
Digital Erased All Data on the Western Digital Prior to December 17, 2013" Should
Be Excluded.
Defendant purchased a Western Digital external hard Drive to use to back up the files on

his laptop computer, and has used it for that purpose since he obtained it. The hard drive itself
was manufactured on May 2, 2012 in Taiwan (Doc 115-2, Pg. ID 1144). Paige, however, claims

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that the hard drive was connected to Defendant's computer's "numerous times between October
2011 to December 2014." (Paige Report, ¶ 48.) Obviously, the hard drive could not have been
used before it was even manufactured. When this was brought to this Court's attention with
regard to Malibu's latest motion for sanctions, Malibu claimed that it was a "scrivener's error"
and that the report should have read "October 2012 to December 2014." (Doc 122, p 5, Pg. ID
1299.) However, if it was a "scrivener's error" it was one that Paige also included in his
February 13, 2015 Report, where it was supported by screenshots of log entries that showed
months and days but no years. That report, itself, purported to provide the years of the log
entries, but the earliest purported date is November 24, 2012. (See Ex _.)9 Given Paige's
propensity for "scrivener's errors" it is more likely that he either made a bigger mistake than
Malibu's counsel gives him credit for, or there is malfeasance going on here.
Secondly, Paige does not appear to understand how the Time Machine Program works,
and Malibu has suggested to this Court that the Western Digital drive was full when examined by
Paige and that older backups had been written over by newer backups.

Paige's own

supplemental report from March 19, 2015 reveals that there were 335 Gigabytes of space still
available on the hard drive when he examined it on March 4, 2015, and all of the hourly, daily,
and weekly backups that one would expect to see (72 in total) were present on the drive going all

9

Paige's 2-13-15 Report purports that the "search hits" evincing the times that the Western
Digital drive was connected to Defendant's MacBooks were exported to a folder in his final
report case files entitled "USB Device Search Hits" and are reviewable by viewing those files.
(Ex._, p 10.) There are actually two such folders (presumably, one for each MacBook). The
contents of those folders are attached hereto as Exhibit _ and Exhibit _. To save this Court time,
nothing in those folders demonstrates factual support for Paige's claims as to when the Western
digital drive was connected to Defendant's computers.
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the way back to the date that it was first put into service as a "time machine." (Exhibit _.) See fn
6, infra.10
Paige's presumption that Malibu's files were on the Western Digital drive in the days
from its purchase to when it was formatted and put into use is sheer speculation, and is a
conclusion not warranted by the facts.
C..

Paige's Opinions that "Defendant Used BitTorrent and Committed Perjury
Regarding his BitTorrent Use" and that "Defendant's Intentional Failure to
Produce Relevant Devices and Other Evidence Makes it Likely that Defendant is the
Infringer" Should Both Be Excluded.
At ¶¶ 32-45 of the Paige Report, Paige offers the "expert" opinion that Defendant was

lying about his BitTorrent use, and had perjured himself. At ¶¶ 56-74, the Paige Report offers
the "expert" opinion that Defendant intentionally failed to turn over computer devices and that
this, and the fact that he fits the profile of the infringer means that he is probably the infringer.
Even if these opinions were not already fatally flawed as having been inferred from the
erroneous conclusions of Paige that were previously refuted, they are exactly the sort of "expert"
opinion that are barred by Daubert and its progeny.
First, a jury does not need someone like Paige to tell them whether defendant was lying
or had committed perjury or what Defendant's intent was. An expert cannot testify about a
witness' credibility. The jury, not the expert, evaluates credibility. Lee v. Metro. Gov't of
Nashville & Davidson Cnty., 432 F. App'x 435, 448 (6th Cir. 2011) (witness credibility is solely

10

It is interesting that Paige's March 19, 2015 supplemental report regarding the Western Digital
drive describes (as if it were an alarming event) the fact that the Time Machine files show 16
hourly backups the day that Defendant shipped the drive to Paige, and daily backups in the
month prior. (Exhibit _, p _.) Paige seems to be suggesting that Defendant, driven by some
nefarious purpose, engaged in a frenzy of backups that were related to turning over the hard
drive. In truth, however, Time Machine makes a back up every hour of every day. But it only
keeps them for 24 hours, after which it overwrites all but one of them. Similarly, it keeps daily
backups only for a month, then discards all except those it uses as weekly backups.
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within the jury's province.); Greenwell v. Boatwright, 184 F.3d 492, 496 (6th Cir. 1999)
("Regardless of the intent or motivation of the expert in commenting on the eyewitness
testimony, we agree . . . that the testimony regarding the credibility of eyewitness testimony was
improper."); Conde v. Velsicol Chemical Corp., 804 F.Supp. 972, 986 (S.D. Ohio 1992) ("It is
the province of the jury to weigh the credibility of witnesses"). Such "human lie detector"
testimony is universally rejected. See, e.g., United States v. Kasper, 58 M.J. 314, 315 (C.A.A.F.
2003) (human lie detector testimony "usurps the jury's exclusive function to weigh evidence and
determine credibility" ); People v Graham, 173 Mich App 473, 478; 434 NW2d 165 (1988)
("[a]n expert cannot be used as a human lie detector to give a stamp of scientific legitimacy to
the truth or falsity of a witness' testimony"). Here, Defendant has set forth evidence establishing
that he neither lied about his Bittorrent use nor hid computer devices from Malibu. (See Doc115-2; Doc 120-1.) If Malibu has evidence on which it feels that it can argue otherwise to the
jury, it may do so. The jury does not need Paige, of all people, to tell them who to believe.
Second, Paige's opinion that Defendant fits the profile of the infringer is just an attempt
to put Malibu's counsel's argument in Paige's mouth. For instance, Malibu believes that it can
establish that Defendant has an interest in camping, outdoor and survivalist activities. Allegedly,
the "expanded surveillance" of Defendant's IP address suggests that a qBittorrent user with
similar interests was using Defendant's IP address. Paige wants to opine that the odds of two
people living in close proximity in Petoskey, Michigan with both being interest in camping and
survivalism is so low that the jury should presume that Defendant was the one who downloaded
that information and, a through an additional leap of logic, was also the infringer of Malibu's
copyrights. However, while it may be fair game for Malibu's counsel to argue that to the jury,
there is no scientific basis, study, or specialized knowledge on the part of Paige that justifies

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having him present, in the form of an expert opinion, Malibu's counsel's theory. See Nelson,
supra, 243 F.3d at 254 (testimony relying on "the ipse dixit of the expert" is not admissible).
Third, the entirety of the opinions here challenged appear to rely on the this syllogism:
(1) Defendant engaged in other copyright violations and lying; (2) therefore he is the kind of
person who violates copyrights and lies about it; and (3) therefore, the jury should believe that, in
all likelihood, Defendant committed the infringements alleged in this case and is now lying about
it. However, unlike the "profile" argument discussed above, this would not even be permissible
for Malibu's counsel to argue, since evidence may not be admitted to show conduct in
conformance with character.

See FRE 404(b).

Moreover, Paige cannot even show that

Defendant committed other incidental acts of infringement (he simply makes assumptions in that
regard), so it fails under FRE 104(b).
CONCLUSION
It is clear from the nature of most of the opinions in the Paige Report that his conclusions
are not actually deducible from his premises (and not even accounting for the falsity of many of
his premises). This is somewhat understandable when one considers that his Report is the
product of inductive logic rather than deductive logic. That is, if one starts with the assumption
that Defendant is the infringer (as Paige has obviously done here), and then works backward to
extrapolate the premises, one reproduces Paige's results.

For example: (1) Paige assumes

Defendant is the infringer; (2) Paige finds no evidence supporting that assumption on
Defendant's computers and file storage devices; so (3) Paige concludes that Defendant withheld
computer devices, hid evidence or lied. The problem with that type of reasoning is that the
initial premise (which is actually the conclusion) is not supported by the syllogism.

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 Case 1:13-cv-00360-RJJ ECF No. 124-1 filed 01/24/16 Page 15 of 15 PageID.1344

Therefore, based on the overall lack of reliability in Paige's Report (only some of which
was detailed herein, given space limitations), Defendant respectfully requests that his entire
Report be excluded. Accordingly, and pursuant to Fed. R. Civ. P 26(b)(2) and this Court's
scheduling order, Paige would be precluded from testifying as an expert or offering any opinion
at all. However, Defendant understands that Paige might still be called as a fact witness to
testify as to such matters as the fact that he examined Defendants computers and storage files,
and the fact that he found no traces of Malibu's copyrighted works. The parties might even be
able to come up with an appropriate stipulation obviating the need for his limited testimony.
WHEREFORE, Defendant respectfully requests that this Court grant his Motion, in
whole or in part, and grant such other relief as is just and proper.
Respectfully submitted,
/s/ Derek S. Wiczynski
Derek S. Wilczynski (P57079)
Attorney for Defendant
2095 E. Big Beaver Rd., Ste 400
Troy, MI 48083
(248) 519-9000

/s/ Lincoln G. Herweyer
Lincoln G. Herweyer (P55742)
Attorney for Defendant
35054 23-Mile Rd., Ste 115
New Baltimore, MI 48047
(586) 716-1562

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